Sanctuary Cities? That’s a Constitutional ‘Hell No’

This column by ACRU Policy Board member Hans von Spakovsky was published April 17, 2017 byConservative Review.

You may not have heard of the “Nullification Crisis” that President Andrew Jackson faced in 1832. But there are many unfortunate similarities between it and what is happening today on immigration. From the unjustified obstruction of immigration law by some activist federal judges to the defiance of the federal government on sanctuary policies by governors and city mayors such as Ed Murray of Seattle, there are some interesting parallels —- and lessons.

I was reminded of the Nullification Crisis recently on a tour of James Madison’s home, Montpelier, which is close to the University of Virginia in Charlottesville, Virginia. One of the docents related how President Jackson had visited Madison in the midst of his reelection campaign to get his advice. This crisis was about high tariffs which, before the implementation of the income tax in 1913 through the Sixteenth Amendment, was one of the main sources of income for the federal government.

High tariff rates were resented throughout the South, particularly in South Carolina. While they benefited manufacturers in the northern states, they hurt the mostly agricultural southern states. Led by John Calhoun, South Carolina and other states asserted that they had the final authority to declare federal laws unconstitutional and thus null and void within their states. While Jackson was a moderate on tariffs and respectful of the rights states retained in our federal system, he was scornful of the nullification theory. He considered it an unconstitutional, “abominable doctrine” that “will dissolve the Union.”

In 1832, the nullifiers took control of the South Carolina government and passed the infamous “Ordinance of Nullification.” They expressed the same type of virulent hostility and contempt for (and defiance of) the Jackson administration and the tariff system that we are seeing today towards the Trump administration over enforcement of federal immigration law, including provisions against certain sanctuary policies. Those states and cities are pushing the same concept of nullification of federal law, although they are doing it in federal court.

As one would expect of Andrew Jackson, he reacted strongly to this threat from South Carolina, including issuing a Nullification Proclamation on Dec. 10, 1832. Nullification was “incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed,” He wrote. The crisis was resolved by a compromise bill on tariffs that Congress passed in 1833 after passing the Force Bill, which gave the president the power to use state militias and federal forces against the nullifiers.

The similarity between these events and what is happening today are eerie. While there are many areas over which the states and the federal government share responsibility —- or where the Tenth Amendment gives responsibility to the states —- immigration is not one of them. Section 8 of Article I gives Congress exclusive authority to “establish a uniform Rule of Naturalization,” just as Section 8 gives Congress the exclusive authority to establish and collect all “Imposts and Excises” or tariffs. The states have no authority in these areas at all. They can no more dispute the immigration rules established by Congress than they could dispute the tariffs imposed by Congress back in 1832.

This makes perfect sense. Any other rule would produce chaos. Think of the enormous problems that would be caused by border states such as Texas or California deciding that they would ignore federal law and apply their own immigration rules to individuals coming across the Mexican border into the United States —- or if states decided that they would impose their own tariffs on foreign goods coming into their states in addition to those imposed by the federal government. In fact, it was that kind of behavior that was restricting trade under the Articles of Confederation between states such as Virginia and Maryland that helped lead to the call for a constitutional convention.

When it comes to immigration and the entry of aliens into the U.S., Congress delegated to the president the extremely broad authority under 8 U.S.C. §1182 (f) to suspend the entry of any aliens or class of aliens into the U.S. if he believes it “would be detrimental to the interests of the United States.” As five dissenting judges at the Ninth Circuit Court of Appeals recently pointed out, there are a long series of decisions by the U.S. Supreme Court upholding the authority of prior presidents under this provision and severely limiting the ability of the courts to review the president’s decision.

Unfortunately, at the urging of certain states, the courts have in large part ignored the Constitution, federal law, and prior precedents. They are instead substituting their judgment for that of the president, and enjoining the president’s executive order by implementing a temporary halt to entry from certain terrorist safe havens. In essence, states such as Hawaii and Washington are turning to activist federal judges to nullify the exclusive authority of the federal government over immigration and the security of our national border —- and those judges are complying.

The sanctuary policies implemented by cities such as San Francisco and Seattle also seek to nullify federal immigration law and obstruct its enforcement. 8 U.S.C. §1373 prohibits states and local jurisdictions from preventing their law enforcement officials from exchanging information with federal officials on the citizenship status of individuals they have arrested or detained. The Supreme Court upheld this provision in 2012 in Arizona v. United States.

Quite appropriately, Attorney General Jeff Sessions has announced that he will not award any discretionary federal grants from the Justice Department to cities that violate §1373. Seattle has filed suit, claiming that the federal government has no right to cut off its access to discretionary funding. The city also makes the meritless claims that its policy does not violate federal immigration law.

Sanctuary cities are claiming that Sessions is trying to force them to enforce federal immigration law and that the loss of federal funds would violate the holding in NFIB v. Sebelius (2012). This is the Supreme Court decision that upheld Obamacare but found that the Medicaid portion of Obamacare, which required states to significantly expand their Medicaid coverage or risk losing all Medicaid funding, violated the Spending Clause of the Constitution. The federal government was “commandeering” the states by compelling them to “enact or administer a federal regulatory program.”

But Sessions is simply trying to get states to not obstruct federal enforcement. That includes abiding by the ban contained in Section 1373. Sanctuary cities are trying to prevent federal officials from finding out about criminal alien murderers, rapists, and other violent criminals that these cities would apparently rather release than have picked up and deported so they cannot further victimize Americans. Section 1373 doesn’t force local law enforcement officials to notify federal officials when they detain an illegal alien; It simply says that local governments can’t ban law enforcement officials from doing so.

The spurious legal argument that §1373 violates the anti-commandeering principle was raised by the City of New York in a lawsuit against the federal government only 11 days after the provision became federal law. New York also had a policy in place that forbade city officials from transmitting information on the immigration status of any individual to federal immigration authorities. In City of New York v. U.S. (1999), the Second Circuit Court of Appeals threw out the city’s case because the federal law was constitutional and well within congressional authority on immigration.

As the court pointed out, §1373 does not compel “state and local governments to enact or administer any federal regulatory program. Nor has it affirmatively conscripted states, localities, or their employees into the federal government’s service.” The only thing the provision does is prohibit state and local governmental entities or officials from “directly restricting the voluntary exchange of immigration information with the INS.” A contrary holding would cause chaos: “If Congress may not forbid states from outlawing even voluntary cooperation with federal programs by state and local officials, states will at times have the power to frustrate effectuation of some programs.”

We can only hope that the current nullification crisis will also be resolved once and for all when all of the lawsuits being filed by the states to prevent the enforcement of federal immigration law reach the Supreme Court.

That is clearly what is happening here: sanctuary states and cities want to “frustrate effectuation” of federal enforcement of our immigration laws. The absence of such cooperation, as the Second Circuit said, would force federal officials to “resort to legal processes in every routine or trivial matter, often a practical impossibility.” This was the same type of resistance exhibited by local governments to Brown v. Board of Education: “a refusal by local government to cooperate until under a court order to do so.”

Furthermore, refusing to award sanctuary cities funds that have to be applied for and that are entirely discretionary within the judgement of the attorney general does not come anywhere close to “commandeering” a “State’s legislative or administrative apparatus for federal purposes,” which was the key factor in the NFIB decision. The Supreme Court said that there is no violation of the Spending Clause “when a State has a legitimate choice whether to accept the federal conditions in exchange for federal funds.”

States can make their own decisions on whether to apply for a portion of the $4.1 billion the Justice Department has available to local jurisdictions for improving their law enforcement programs. In fact, this situation raises even fewer concerns than a federal law that the Supreme Court upheld in South Dakota v. Dole (1987). That law provided that states would lose five percent of their federal highway funds if they did not raise the drinking age to 21. This was “relatively mild encouragement” compared to the Medicaid expansion in Obamacare, where the Court described the potential loss of all Medicaid funding as a “gun to the head.”

Similarly, when it comes to sanctuary cities, the Justice Department isn’t threatening the cutoff of any major entitlement funds such as Medicaid or even state highway funds. What’s at stake are discretionary grants that the states may or may not decide to apply for, and which the Justice Department may or may not choose to grant.

The Nullification Crisis was resolved when South Carolina rescinded its nullification ordinance after President Jackson issued his Nullification Proclamation. We can only hope that the current nullification crisis will also be resolved once and for all when all of the lawsuits being filed by the states to prevent the enforcement of federal immigration law reach the Supreme Court.

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